A century and a half later, in 1983, the Supreme Court affirmed that incarcerating indigent debtors was unconstitutional under the Fourteenth Amendment's Equal Protection clause. ^ See Recent Legislation, supra note 23, at 131619 (criticizing the lack of such a definition in recent Colorado legislation). ^ See Settlement Agreement, Mitchell v. Montgomery, supra note 52, at 23. Purporting to save taxpayer dollars, these outfits force the offenders themselves to foot the bill for parole, reentry, drug rehab, electronic monitoring, and other services (some of which are not even assigned by a judge). . A building in Accomack County, Va., which served as a debtors prison from 1824 to 1849. Indeed, costs function more as fees for service or taxes than as punishments. ^ Recent Legislation, supra note 23, at 1314. Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. In fact, under the state law protections, criminal justice debtors would face a much friendlier inquiry than they would under Beardens freestanding equal protection jurisprudence.160 This is true under either of the two rules detailed above. ^ See, e.g., State v. Blazina, 344 P.3d 680, 68081, 684 (Wash. 2015); ACLU of Wash. & Co-lumbia Legal Servs., Modern-Day Debtors Prisons 3 (2014), http://aclu-wa.org/sites/default/files/attachments/Modern%20Day%20Debtor%27s%20Prison%20Final%20(3).pdf [http://perma.cc/X66N-G5EA] ([T]he average amount of LFOs imposed in a felony case is $2540. art. art. Because the purpose of costs is not purely or even mostly to punish, they are arguably debts within the text of the state bans. art. State Bans on Debtors' Prisons and Criminal Justice Debt Part IV explains why it makes good sense to subject the new debtors prisons to the two-tiered regulation of both Bearden and these state bans, in the form of new imprisonment-for-debt claims. Stat. But aside from clear policy concerns, they may violate constitutional laws at both the federal and state levels. 1951) (citing In re Clifts Estate, 159 P.2d at 876), and Oklahoma, see Sommer v. Sommer, 947 P.2d 512, 519 (Okla. 1997); Lepak, 844 P.2d at 855. ^ See id. I, 14 (No person shall be imprisoned for failure to pay a fine in a criminal case unless he has been afforded adequate time to make payment, in installments if necessary, and has willfully failed to make payment.). ^ See, e.g., State ex rel. This criminal debt "exception" to debtors' prisons is intimately linked to this country's complicated history regarding debtors and creditors. VIII; id. ^ Id. Courts, however, did make clear that the legislature couldnt criminalize the mere nonpayment of commercial debt as a constitutional workaround. & Mary L. Rev. By reading a z leveled books best pizza sauce at whole foods reading a z leveled books best pizza sauce at whole foods at 172627. Dir., ACLU of Ohio, et al., to Chief Justice Maureen OConnor, Ohio Supreme Court (Apr. See Ill. Const. 448, 448 (La. In addition, the ACLU asks for a "bench card" to remind judges in all courts across the state that jail is not a punishment for poverty. II, 18 (There shall be no imprisonment for debt, except in cases of fraud.). Meanwhile, with the advent of bankruptcy law, individuals were given a way out of insurmountable debt, and creditors were made to share some of the risk inherent in a loan transaction. that the Oregon courts would strike down the statute as being inconsistent with the constitutional provision if they faced the issue.). [A]ny broadside pronouncement on their general validity would be inappropriate. Id. art. Copyright 1887-2023 Harvard Law Review. Read more. art. Between 1821 and 1849, twelve states followed suit. In the United States, debtors' prisons were banned under federal law in 1833. , shall not constitute a debt within the meaning of this section.). ^ Cf., e.g., Kimble v. Marvel Entmt, LLC, 135 S. Ct. 2401, 241011 (2015) (identifying the ero[sion] of statutory and doctrinal underpinnings, id. ^ Georgias law provides guidance for courts in indigency determinations. ^ See, e.g., Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause, 40 Hastings Const. Imprisonment for nonpayment of contractual debt was a normal feature of American commercial life from the colonial era into the beginning of the nineteenth century.93 But with the rise of credit testing and the replacement of personal lending networks with secured credit, imprisonment for nonpayment came to be seen as a harsh and unwieldy sanction,94 and a growing movement pressed for its abolition. Additionally, interpreting the James and Fuller Courts as applying some degree of heightened scrutiny,148 the disparate application of the imprisonment-for-debt bans is an even better indicator of invidious discrimination149 than the disparate applications of the Kansas and Oregon exemption statutes. ^ Complaint, Cleveland v. Montgomery, supra note 14, at 4. In 19th Century Great Britain, more than half of all people incarcerated were there because of unpaid bills and debts. Despite that, state judges continued to send people to jail for failing to pay court debts. 938.29(4) (2015) (specifying that such debtors shall not be denied any of the protections afforded any other civil judgment debtor). See sources cited supra note 95. . amend. L. Rev. 18; Md. at 6061. . One-Time Monthly Annual. art. ^ Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2761 (2010). 2:14-cv-00186 (M.D. ^ The Missouri legislation, for example, seems to constrain municipal collection of criminal justice debt within certain domains. And debtor's prisons added a nice touch -- not only were you forced to pay your debt, but you were also forced to pay your prison fees. . . A conference called by advocates for the abolition of debtors' prisons voted unanimously for resolutions2 including the understanding that . . Regulatory offenses are assessed to deter low-level misbehavior, and costs are assessed to replenish the coffers of the criminal justice system, or to fund the government. . In the 1970s and 1980s, he says, we started to imprison more people for lesser crimes. Const. Read More. A century and a half later, in 1983, the Supreme Court affirmed that incarcerating indigent debtors was unconstitutional under the Fourteenth Amendment's Equal Protection clause. 489, 491 (1977) (State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Courts interpretation of federal law. I, 18; Tex. VIII; Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Calif. L. Rev. Part III introduces the state bans and argues that they should be held to apply to some fines for regulatory offenses, costs, and definitionally civil debts both as a matter of sound interpretation of state law and as a matter of federal equal protection doctrine. Debtors prisons were outlawed in the United States nearly 200 years ago. art. The case was brought on behalf of Kevin Thompson, a black teenager in DeKalb County, Georgia. at 13233 (The statutes vary widely in their terms. Id. Bearden and imprisonment-for-debt claims could operate side-by-side in a manner thats both administrable and functionally appealing. Miss. For example, a state could plausibly maintain that imprisonment for nonpayment of costs attendant to crime helps to deter criminal behavior, such that abolishing such imprisonment for civil debts, while maintaining it for criminal debts, is reasonable. While the contemporary discussion on criminal justice debt often makes cursory reference to this historic abolition of debtors prisons,25 the legal literature contains no sustained analysis of whether the state bans on debtors prisons might invalidate some of whats going on today. at 42, 53. . See U.S. Const. In Williams v. Illinois,67 the defendants failure to pay a fine and costs would have resulted in a term of imprisonment beyond the statutory maximum.68 And in Tate v. Short,69 the defendants failure to pay would have resulted in imprisonment when the statute didnt allow for imprisonment at all.70 The Court struck down imprisonment in each case.71 The third and most discussed case in the trilogy, Bearden v. Georgia, struck down the automatic revocation of parole for nonpayment of criminal justice debt.72 Bearden established a bona fide efforts test that asks how seriously one has tried to secure employment and credit, in addition to measuring assets.73 The Bearden line of cases thus endeavors to shield criminal justice debtors making a good faith effort to pay, while leaving willful nonpayment unprotected.74, The second line of cases limits states ability to treat civil debtors differently based on the procedural origins of their debt. ^ See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. Rev. ^ See Natapoff, supra note 1, at 1098 & n.208; Developments in the Law Policing, supra note 5, at 1734. Ann. This provision is a marked improvement in light of the trend of legislative enactments, starting in 2005, that made many fines for criminal offenses non-waivable, even when an individual could prove inability to pay. To the contrary, regulatory offenses became prominent within American criminal law only after the abolition of debtors prisons.131 The Court in Morissette v. United States132 identified the pilot of the [regulatory offenses] movement in such crimes as selling liquor to an habitual drunkard and selling adulterated milk, citing cases from 1849,133 1864,134 and 1865.135 A law review article published in 1933 called the steadily growing stream of offenses punishable without any criminal intent whatsoever a recent movement in criminal law,136 placing the beginnings of the trend in the middle of the nineteenth century.137 By comparison, all but a few states had enacted their bans on debtors prisons by the 1850s.138 So reading the carve-outs as unrelated to regulatory crimes is consistent with both text and original meaning. In response, since 2009, the ACLU and ACLU affiliates across the country have been exposing and challenging modern-day debtors' prisons, and urging governments and courts to pursue more rational and equitable approaches to criminal justice debt. at 60. . In 2016 the ACLU of Arkansas, the Lawyers' Committee for Civil Rights Under Law and the Morrison and Foerster law firm filed a federal proposed class action lawsuit challenging a debtors prison in the City of Sherwood and Pulaski County. Const. Experts say that the trend, though ongoing, coincided with the rise of mass incarceration.. I, 28; N.D. Const. What are some types of debt that people are sent to jail for not paying? As of October 2015, the case had survived a contentious motion to dismiss the judge had initially dismissed, then reconsidered and reinstated, two allegations of unconstitutional imprisonment for debt and was moving toward trial. These dungeons, such as Walnut Street Debtors Prison in Philadelphia and the New Gaol in downtown Manhattan, were modeled after debtors prisons in London, like the Clink (the origin of the expression in the clink). at 133.). ^ See Recent Legislation, supra note 23, at 1313 n.13. I, 21; Minn. Const. Yet, as noted, they may be jailed for failing to show up at a civil hearing or for not resolving civil debt. In the latest front in the nationwide fight against debtors' prisons, on June 1, 2017, the American Civil Liberties Union filed a proposed class action lawsuit in federal court to challenge the illegal arrest and incarceration of poor people in Lexington County, South Carolina, without a hearing or representation by counsel. See Thacher v. Williams, 80 Mass. . (Oct. 10, 2012), http://static.aclu-co.org/wp-content/uploads/2013/12/2012-10-10-Bender-Dailey-Wallace.pdf [http://perma.cc/5F9Y-U7RC]; Letter from Rebecca T. Wallace, Staff Atty, ACLU of Colo., and Mark Silverstein, Legal Dir., ACLU of Colo., to Herb Atchison, Mayor of Westminster, Colo. (Dec. 16, 2013), http://static.aclu-co.org/wp-content/uploads/2014/02/2013-12-16-Atchison-ACLU.pdf [http://perma.cc/7ZZS-X3RL]. Part I describes the contemporary problem with criminal justice debt in greater detail. Read More. art. 774, 776 (Ala. 1938). at 61 (Marshall, J., dissenting); see also id. See id. ^ See Shepard, supra note 6, at 152930 (describing the rules origin in the common law precept that creditors must exhaust legal remedies before turning to equitable ones). The question was, how? Press 2006) ([B]efore [our debt is transferred from Scrooge] we shall be ready with the money; and even though we were not, it would be a bad fortune indeed to find so merciless a creditor in his successor.). 161.685(2) (1973) (omission in original)). Debtors' prisons impose devastating human costs. Despite the Courts reluctance to rule on an issue not properly briefed, federal courts might return to the issue and confirm that states must apply their bans on imprisonment for debt to costs (and other quasi-civil debts) in a criminal case.150 In fact, the lawsuits against Ferguson and Jennings hinted at this argument,151 although neither complaint cited the Missouri Constitution. Accessibility, A Christmas Carol and Other Christmas Books, The Collapse of American Criminal Justice, Investigation of the Ferguson Police Department, Criminal Justice Debt: A Barrier to Reentry, In for a Penny: The Rise of Americas New Debtors Prisons, Office of Judicial Servs., Supreme Court of Ohio, Collection of Fines and Court Costs in Adult Trial Courts, http://www.nytimes.com/2015/09/18/us/suit-alleges-scheme-in-criminal-costs-borne-by-new-orleanss-poor.html, http://aclu-wa.org/sites/default/files/attachments/Modern%20Day%20Debtor%27s%20Prison%20Final%20(3).pdf, http://www.newyorker.com/magazine/2014/06/23/get-out-of-jail-inc, http://www.splcenter.org/sites/default/files/downloads/case/amended_complaint-_harriet_cleveland_0.pdf, http://www.splcenter.org/sites/default/files/downloads/case/exhibit_a_to_joint_settlement_agreement_-_judicial_procedures-_140912.pdf, http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/Complaint-Jennings-Debtors-Prisons-FILE-STAMPED.pdf, http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf, https://www.hrw.org/sites/default/files/reports/us0214_ForUpload_0.pdf, http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf, https://assets.documentcloud.org/documents/2455850/15-10-09-class-action-complaint-stamped.pdf, http://www.nytimes.com/2015/10/20/us/for-offenders-who-cant-pay-its-a-pint-of-blood-or-jail-time.html. The report documents the routine jailing of poor people across the state solely for their failure to pay court-imposed fines and fees. ^ See Mass. ACLU affiliates across the country have launched campaigns exposing courts that illegally and improperly jail people too poor to pay criminal justice debt, and seeking reform through public education, advocacy, and litigation. Const. And when Massachusetts abolished imprisonment for petty debts in 1811, the 2 See Matthew 18:29-31 (New International Version) on imprisonment for debt. As a result of the greater reliance on incarceration, says Karin Martin, a professor at John Jay College and an expert on criminal justice financial obligations, there was a dramatic increase in the number of statutes listing a prison term as a possible sentence for failure to repay criminal-justice debt3. . 2:13-cv-00732 (M.D. This Part lays out how the state law protections would differ from the federal protections, and why having multiple levels of protection makes sense. ^ Complaint, Cleveland v. Montgomery, supra note 14, at 2; see Stillman, supra note 11. ^ State v. Blazina, 344 P.3d 680, 685 (Wash. 2015). I, 19; Kan. Const. Stat. at 138. Until that time, failure to pay what you owed could and did land you in jail. In Benton County, Wash., a quarter of those in jail are there because they owe fines and fees. 2d 227, 233 (Ala. Crim. ^ See Recent Legislation, supra note 23, at 1313, 1315. Lanz v. Dowling, 110 So. ^ Id. November 6, 2017 By: Bobby Casey, Managing Director GWP Do an internet search on debtors' prisons, and the top searches will See U.S. Const. Cf. Courts emphasize that the contempt lies in failing to comply with an injunction to turn over specific property that is currently under the debtors control.117 And that specific property must also be nonexempt under the states exemption laws.118 An injunction as a general rule is a drastic and extraordinary remedy.119 Accordingly, some states require that creditors attempt execution through in rem actions before resorting to in personam actions.120 Herein lies the attractiveness of the state bans to the civil debtor the protections offered to a qualifying debtor, as a general rule, far exceed those offered to the criminal debtor. . Thus, under James and Fuller, states cannot discriminate invidiously against at least some classes of criminal justice debtors (note that neither case involved fines) merely by virtue of the fact that the debts arise from a criminal proceeding. Sometimes called legal financial obligations (LFOs), the total debt generally includes a mix of fines, fees, court costs, and interest.5 And unlike civil collection actions (for the most part6), incarceration is very much on the menu of sanctions that the unpaid creditor, usually a municipality,7 can impose. But the carve-outs for crime? 1976) (en banc); Zeitinger v. Mitchell, 244 S.W.2d 91, 9798 (Mo. While the United States no longer has brick and mortar debtors' prisons, or "gaols for debtors" of private debts, the term "debtor's prison" in modern times sometimes refers to the practice of imprisoning indigent criminal defendants for matters related to either a fine or a fee imposed in criminal judgments. 560.031(5) (2000) ([T]he fine may be collected by any means authorized for the enforcement of money judgments.) (to be transferred to Mo. 556.016 (2000), repealed and replaced by Act effective Jan. 1, 2017, 2014 Mo. L. Rev. In February 2014, the Supreme Court of Ohio released a new "bench card" giving much-needed instructions to Ohio judges to explain how to avoid debtors' prison practices in their courtrooms. L. Rev. Knowing that youre behind us means so much. Alec Karakatsanis, a lawyer who last year brought one of the only lawsuits to successfully challenge a local court system for jailing indigent debtors, says that the first step was the normalization of incarceration. For example, violations of municipal ordinances boil down to the regulatory crimes category in states where municipalities are not empowered to imprison. 357 (1889). What is the history of debtors prisons in the United States? Stay informed about our latest work in Debtors' Prisons First name Last name Email ZIP code Similarly, some collections statutes explicitly redefine certain debts as civil for the purposes of collection. A Constitutional History of Debtors' Prisons The Court identified some of those limits in a pair of equal protection cases in the 1970s: James v. Strange75 and Fuller v. Oregon.76, The debtor in James v. Strange owed $500 to pay for a court-appointed attorney and challenged the Kansas recoupment statute under which the state had attempted to recover the money.77 The Court struck down the recoupment statute because it failed to provide any of the exemptions provided by [the Kansas Code of Civil Procedure]. In Colorado, Linda Robertss offense of shoplifting $21 worth of food resulted in $746 of court costs, fines, fees, and restitution.37 Ms. Roberts, who lived exclusively on SNAP and Social Security disability benefits, sat out her debt by spending fifteen days in jail.38 And in Georgia, Tom Barrett was sentenced to twelve months of probation for stealing a can of beer.39 But six months in, despite selling his blood plasma, Barrett still couldnt pay the costs associated with his sentence including a $12-per-day ankle bracelet, a $50 set-up fee, and a $39-per-month fee to a private probation company and faced imprisonment.40 A 2010 Brennan Center report flagged problematic criminal justice debt practices in fifteen states, including California, Texas, Michigan, Pennsylvania, and New York.41 A 2010 ACLU report claimed that required indigency inquiries the heart of the constitutional protection provided by Bearden were markedly absent in Louisiana, Michigan, Ohio, Georgia, and Washington.42. ^ See, e.g., Telephone Interview with Douglas K. Wilson, supra note 7. The second is to develop an economic theory of debtors' prisons, focusing on . Laws 941). at 672. Did the United States abolished debtors prisons in 1929? Eliminating the Criminal Debt Exception for Debtors' Prisons When did they get rid of debtors prisons? - Heimduo In 2012 and 2013, the ACLU of Colorado sent letters to Chief Justice Bender of the Colorado Supreme Court and three Colorado municipalities. (called for should hyperlink to. III, 38 ([A] valid decree of a court . ^ E.g., S.D. J. Pub. ^ Fuller v. Oregon, 417 U.S. 40, 42 (1974). Dec. 23, 2014) (en banc), http://www.courts.mo.gov/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/fe656f36d6b518a886257db80081d43c [http://perma.cc/BTX3-4ERC]. Thats confusing for debtors, too. The ACLU works in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the laws of the United States guarantee everyone in this country. . See Werdenbaugh, 20 W. Va. at 593, 598. I, 11; S.C. Const. I, 1, XXIII (There shall be no imprisonment for debt.); Tex. 1906); Boarman v. Boarman, 556 S.E.2d 800, 80406 (W. Va. 2001); State v. Burrows, 5 P. 449, 449 (Kan. 1885); see also Thomson, supra note 103, at 364 ([T]he imprisonment is for the contempt and not for the debt. (quoting State v. Becht, 23 Minn. 411, 413 (1877))).

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